Victim's Absence No Bar To Bail Hearing If Notice Served: Allahabad HC

The Allahabad High Court clarified that a bail application under the new criminal laws can proceed even in the absence of the informant, provided they were duly notified of the proceedings. In a significant ruling, the Court emphasized that while providing an opportunity of hearing is mandatory, the actual appearance of the complainant is subject to their own discretion.

Justice Subhash Vidyarthi, presiding over the matter, dealt with a preliminary objection raised regarding the non-appearance of the victim despite service of notice. The Court underscored the procedural harmony between the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Protection of Children from Sexual Offences Rules, 2020. Addressing the mandatory presence clause, the Court noted that if an informant chooses to stay away and trust the Public Prosecutor to represent the state's interest, the judicial process cannot be stalled.

Interpretation of Mandatory Presence under BNSS

The Court, in its reasoning, observed: "The statutory mandate is to provide an opportunity of hearing to the complainant and, thereafter, it is at the sweet will of the complainant to appear before the Court at the time of hearing of the bail application or not. In case the informant chooses not to appear in spite of having been given information about the application and he reposes trust in the learned Public Prosecutor or the learned A.G.A, who would be there to advance submissions in opposition to the bail application, it cannot be said that the bail application cannot be heard in absence of the informant."

The Bench relied on the precedent set in Rohit v. State of U.P., which interpreted Rule 4 of the Protection of Children from Sexual Offences Rules, 2020, making it incumbent upon the police to inform the child or guardian regarding court schedules. In the present case, since the police had delivered the information on May 26, 2026, the Court held that the procedural requirement of Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was sufficiently met.

Medical Evidence Discrepancies Lead to Bail

Inconsistencies in Prosecution Narrative

Moving to the merits of the case, the Court observed significant gaps in the prosecution's story. Although the victim alleged gang-rape in the FIR, her statement under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 showed uncertainty regarding the second accused. More importantly, the medical evidence failed to corroborate the allegations of force or sexual assault.

Absence of Physical Injury

The Court noted that despite the victim's claim of being forcibly taken and raped, the medico-legal report showed no injuries, an intact hymen, and no damage or stains on her clothing. Furthermore, the investigation concluded without the results of pathological examinations of the collected samples. Considering the applicant's age of 20 years, his lack of criminal history, and the conclusion of the investigation, the Court found it fit to grant bail.

The Court has the following directions:

"(i) the applicant shall not tamper with the prosecution evidence;

(ii) the applicant shall not pressurize the prosecution witnesses;

(iii) the applicant shall appear on each and every date fixed by the trial court."

Background:

The applicant, Umesh Mali, was arrested on February 12, 2026, following an FIR lodged by a 14-year-old victim under Section 70(2) and Section 351(3) of the BNS, 2023, Section 5/6 of the POCSO Act, and Section 3(2)(v) of the SC/ST Act. The victim alleged that while she was in a field, the applicant and a co-accused abducted her and the applicant raped her.

During the hearing, the Additional Government Advocate (A.G.A.) raised a preliminary objection based on Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, arguing that the bail hearing could not proceed without the informant's presence. The applicant's counsel argued that the applicant was falsely implicated and highlighted the medical reports that contradicted the victim's version. The Court overruled the preliminary objection, examined the evidence, and allowed the bail application.

Case Details:
Case No.: CRIMINAL MISC. BAIL APPLICATION No. - 3976 of 2026
Case Title: Umesh Mali Versus State Of U.P. Thru. Prin. Secy. Home Lko And 3 Others
Appearances:
For the Petitioner(s): Ashutosh Kumar Shukla, Advocate
For the Respondent(s): H.S. Maurya, G.A.

Source: 2026 CaseBase(ALL) 218